PROVING THINGS 97: AN APPROACH THAT WAS UTTERLY FLAWED AND HOPELESSLY CARELESS: WHEN SOLICITORS LETTERS BECAME PART OF A PROCESS OF UNLAWFUL HARRASSMENT

In Worthington & Anor v Metropolitan Housing Trust Ltd [2018] EWCA Civ 1125 the Court of Appeal upheld a decision that a housing association had unlawfully harassed its own tenants. A major part of the problem came from the association’s highly defective system of inspection and fact-finding. The solicitors who wrote letters on the association’s behalf making allegations were not at fault. However the letters became part of the process of harrassment. The fundamental problem arise from a series of major errors by the defendant. The investigations it carried out were described as “utterly flawed and hopelessly careless”. This case highlights the dangers where a client carries out investigations and letters are written (and often litigation conducted) on the basis of those investigations. In this case the association did not litigate, however its flawed investigations led to it becoming the defendant in an action and liable to damages.

“its approach was seriously flawed and littered with acts of carelessness and withcareless omissions”

THE CASE

The two claimants were tenants of the defendant housing association. The association made allegations that the claimants were harassing other tenants by filming them. The association wrote letters of complaints, as did the association solicitors. The claimants were threatened with eviction and told that proceedings were “underway”.

THE ASSOCIATION’S FACT-FINDING PROCESS

The investigations were carried out by one of the defendant’s employees, Mr Kotecha.

As subsequently became clear, it was at about this time that Mr Kotecha set about gathering evidence in support of the position he was taking about the continued use by Ms Parkin of her CCTV equipment. First, on 24 September 2007 and at the request of Mr Kotecha, Ms Parkin was visited in her home by two police officers, PC Akeel Hussain and PCSO Abigail Lee. They inspected her CCTV equipment and saw the images which were being recorded.

Secondly, at the beginning of October 2007 the Association received, through Mr Kotecha, a petition and seven statements purportedly prepared by residents. The petition, apparently signed by around 80 persons, was headed:

“This petition is regarding Linda [sic] Parkin and Colin Worthington having cameras facing onto the children’s football field and also facing residents [sic] properties which we feel is invading peoples [sic] privacy. We would like Spirita to act on this immediately and take action to have these cameras removed with immediate effect.”

In fact, however, only a small proportion of the individuals who signed the petition were residentsand the judge found that it had been produced on Sunday, 30 September probably at one of the junior football sessions.

As for the statements, these were produced by Mr Kotecha, after discussions with certain residents, in order to provide evidence for him to pass on to his managers. They contained complaints that Mr Worthington and Ms Parkin had installed CCTV cameras which were being used in a manner which amounted to an invasion of privacy; and that Mr Worthington had been seen taking photographs of children without any proper reason to do so and had created the impression that he was working for Spirita.

Advice was given that the association take certain basic steps in investigation the allegations. These were never taken.

The judge described the advice given in these two emails as elementary and wise and that the thrust of that advice was that simple investigative steps had to be taken before any threat of legal action was made. No such steps were ever taken, however.

INACCURATE LETTERS

The Association then wrote to the claimant tenants informing them that a Notice of Seeking Possession was going to be delivered and further court action taken.

Both of these letters were inaccurate in serious respects. In the case of the letter to Mr Worthington, he had never had CCTV cameras at his property; the petition had not been signed by 80 Arkwright residents; and he had committed no breach of his tenancy, let alone a serious one.

As for Ms Parkin, she did have a CCTV system but, as the judge found, it had been used only for the purposes of her security and not to invade the privacy of members of the public. In other respects, the letter suffered from the same deficiencies as that sent to Mr Worthington.

INACCURATE FACT FINDING BY THE ASSOCIATION

The trial judge (HHJ Owen QC, noted)

“It was from this moment that these parties got off on the wrong foot, but significantly, it is clear, and I find, on the evidence before me, that the probability is, whatever may have been the duties and functions of Miss Cartledge, Miss Thomas or Miss Watson, Mr Kotecha had the freedom to deal with this matter in the way he saw fit, and that was why it was, in effect, he, the junior employee, who was giving instructions to the solicitor and why it was that the solicitor, in turn, having produced his draft letter, sought verification from Mr Kotecha. It is in the light of that lack of supervision and care by Mr Kotecha’s managers, and Mr Kotecha’s own carelessness or incompetence that the solicitors’ threatening letters of the 21st and 24th September were sent out. Without more, these letters may not constitute free standing evidence of a completed cause of action, they are material parts of the overall course of conduct complained of which culminated in the decisions taken which directly affected the Claimants on 11 October 2007 to which I have referred.”

The judge was also very concerned about the threats made to Mr Worthington, as he explained at [70]:

“…[Mr Worthington] never had any equipment at all and it begs the question how could such statements be obtained from residents where it is asserted that he did? The answer is that baseless allegations were assumed to be true and acted on, using the powers and resources available to the Defendants in their capacity as the Claimants’ landlords in an oppressive manner.”

Ms Parkin did have CCTV equipment but, as the judge went on to say:

“So far as [Ms Parkin] is concerned she clearly did have such equipment, wholly lawfully whilst she was at number 28 without abuse of that equipment, and understandably the same equipment, it was assumed by her, reasonably, could be carried with her to number 52 on the condition that it be used under the same conditions. Incidentally, such permission was given retrospectively. I find that that equipment had at all times been used responsibly. Put in another way, there is no evidence which I find credible to show that [Ms Parkin] has acted other than responsibly with this equipment.”

AN APPROACH THAT WAS UTTERLY FLAWED AND HOPELESSLY CARELESS

The judge turned next to the question whether the approach adopted by the Association was disproportionate. He found that, following Mr Kotecha’s involvement, its approach was seriously flawed and littered with acts of carelessness and with careless omissions.But he recognised that this did not necessarily mean that the Association’s conduct was so oppressive and unacceptable as to amount to harassment. In this connection he reiterated that the problem with Mr Kotecha’s approach was that he had got “the wrong end of the stick completely”. At no stage did he stop and consider properly the response of Mr Worthington and Ms Parkin to the assertions that he was making, and he had no proper understanding of the history. Instead he went ahead and acted on the petition and so-called formal statements he had devised in light of his discussions with residents. These had not been “made up” but it was likely that “he listened to vague stories from certain residents without any kind of critical enquiry or … knowledge of the history of the estate.” The problem was compounded by the fact that he was inadequately supervised, as the judge explained at [73]:

“It is also likely that [Mr Kotecha] gave the appearance in the meeting of the 10th October and to Miss Thomas and also Miss Watson as being entirely on top of the case and that he instilled in them confidence in his assessment of the position, contributed to by their lack of minimum critical scrutiny and positive management and supervision. The [Association’s] position is that that is not so and that proper management was exercised; at that meeting there were no less than four levels of management above Mr Kotecha and that the decision, a joint decision, was take in a responsible way. I am unable to accept that general explanation. For the reasons I have given, the approach was utterly flawed and hopelessly careless, not least since they had been given clear, specific guidance, given the nature of the allegations and the nature of this case, the basic steps which had to be taken, by [Mr Hewgill] and more recently, at the time, by Mr Lothian.Without, as I find, any or any adequate explanation, those basic and sensible steps were not taken. The probability is that everybody was going along with Mr Kotecha’s presentation because there had been utterly inadequate, uncritical analysis by Miss Thomas, Miss Watson and Miss Cartledge. Solicitors’ letters were sent out on a wholly incorrect and unjustified basis. [Mr Worthington] never had CCTV. He had made that plain consistently. [Ms Parkin] had CCTV, but she was permitted, in relation to 28, and so far as somebody subsequently had the bright idea that there was a technical deficiency in that formal permission for number 52 had not in fact been sought, the parties had reasonably proceeded on the basis that it was implicit that she had permission arising out of the initial permission, given the absence of any express prohibition against her when the [Association] agreed to her changing her tenancy from 28 to 52. Following the initial threatening letters in late September 2007 matters gathered momentum in the first week of October, as I have found and described and the result was the letters of the 11th October, followed by the letters threatening and indeed on one occasion asserting that proceedings were underway, through to until June 2008 for [Ms Parkin].”

AN APPROACH FUNDAMENTALLY FLAWED IN THAT THERE WAS NO TRUE BASIS IN FACT FOR IT

After dealing with the evidence of the Police, the judge returned to the question whether the Association’s conduct was oppressive and unacceptable. He found that it was at [77]:

“The case collated by Mr Kotecha was fundamentally flawed in that there was no true basis in fact for it and there was no justification for recommending, urging or taking action on that basis without the basic limited investigatory steps being taken, which it was acknowledged [later] should have been taken. Basic competence and fairness required the staff concerned to comply with the very wise, sensible advice and guidance, offered respectively, by [Mr Hewgill] and [Mr Lowthian]. The result is that, although it was suggested in evidence that on the 10th October there was a “very, very careful” examination of the facts to see what the appropriate action be taken, I am unable to find that any such careful examination took place. The result was that, without any sound factual basis, the [Association] sent out the threatening letters to which I have referred, which had the practical effect of threatening possession proceedings and loss of their home, injunction proceedings and all that would entail in relation to their behaviour, in circumstances where it was unwarranted and unjustified. Such conduct, viewed in context, in those circumstances, in my judgment, for those reasons, was oppressive and unacceptable. The truth of the matter is there is no evidence capable of supporting this behaviour. It goes beyond being merely unreasonable or disproportionate.”

INCORRECT ALLEGATIONS

I recognise that on 24 September 2007 and at the request of Mr Kotecha, PC Hussain and PCSO Lee visited Ms Parkin at her home but, as the judge found, their statements setting out what they saw were insufficient to support an allegation of breach of any tenancy condition although they did provide superficial support for Mr Kotecha. That was not the end of the story, however, for, as the judge went on to explain, an email emerged which PC Hussain had sent to his “mate” Mr Kotecha. In the judge’s words this was “a little triumphant in content” and stated that Ms Parkin was “on the back foot” and that he wanted to maintain momentum. The judge was satisfied that this betrayed a lack of professionalism and concluded that he was unable to place any weight on the evidence these officers had given. I am satisfied there is no basis upon which it would be appropriate to interfere with this assessment.

Fourthly, it was at about this time that Beth Watson produced her file note entitled “Lynda Parkin Case Review”, the material contents of which I have set out at [29] above. There are, as it seems to be, a number of difficulties with this note, however. First, it was or ought to have been perfectly clear that Mr Worthington never had CCTV cameras in his home. Second, the note describes the subject matter of the statements being produced by Mr Kotecha in light of his discussions with residents and having listened to vague stories without any critical enquiry or knowledge of the history of the matter. Third, the report of PC Hussain must be considered in light of my observations in the immediately preceding paragraph of this judgment. And fourth, the advice given by Martin Lee was given on the basis of the instructions they had been given by Mr Kotecha. In light of all of these matters I have no doubt that this file note provides no proper foundation for the actions of the Association which followed.

Fifthly, on 4 October 2007 Martin Lee then wrote to Mr Kotecha their letter of advice to which I have referred at [30] above. Once again, however, this advice was plainly based upon the materials provided by Mr Kotecha including, in particular, the petition and the so-called letters of complaint.

Ninthly, the allegation that Mr Worthington had recorded images of children in the locality using a hand-held camera was repeated in the letter of 14 December 2007 from Martin Lee and then, by email of 11 January 2008 he was informed by Ms Russell of the Association that it was seeking an injunction against him and was waiting for a court date when this was wholly incorrect.

Tenthly, the position adopted by the Association in relation to Ms Parkin was very similar. By its letter of 5 December 2007 it asserted that her cameras were recording images of people going about their lawful business in public areas, that this constituted a nuisance and that a failure to remove the equipment forthwith would constitute a breach of her tenancy agreement and would result in the issue of proceedings against her. That threat of proceedings was repeated in the letters of 13 December 2007 and 10 January 2008 and, as I have said, it was not until June 2008 that she was told that proceedings for possession or injunctive relief were not being pursued.

In all these circumstances Mr Davy submits and I accept that a reasonable person would think that the Association’s actions would cause alarm and distress to Mr Worthington and Ms Parkin. I reject the submission that the letters in issue were unexceptional and of a kind regularly sent by owners of social housing as part of their efforts to protect their wider body of tenants. Mr Worthington and Ms Parkin were threatened with possession proceedings and accused of anti-social behaviour and taking inappropriate images of children. Such proceedings, if successful, would have meant they would have to seek accommodation with a different housing association. Yet the Association issued these threats without taking the most basic steps to ensure that they had a proper foundation. They were in fact totally unjustified. I am satisfied the judge had ample material before him upon which to find that the conduct complained of crossed the boundary and was oppressive and unacceptable, and that it amounted to harassment.